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Wednesday, June 25, 2014

Judge James Loken hinted
during oral arguments in January that the federal government's effort to forfeit
the Ka Nefer Nefer mummy mask still might have life even if the Eighth Circuit
Court denied the government’s appeal. But now the federal government's case is truly dead.

Two weeks ago the court of appeals ruled
against federal lawyers, halting their effort to forfeit the mummy mask on procedural
grounds. And now district court Judge Henry Autrey has signed off on the
St. Louis Art Museum’s (SLAM) notice to dismiss the museum’s separate declaratory
judgment action.

Readers will recall that the declaratory judgment case was the initial SLAM
mummy mask case, whereby the museum petitioned to establish exclusive title
to the artifact. Before the U.S. government filed a forfeiture complaint in March 2011, SLAM started its own civil action for declaratory
relief in federal district court, seeking to quiet the title of the 19th Dynasty
Egyptian mask. The museum's February 2011 petition stated that the

Museum respectfully seeks declaratory
relief to declare the respective rights of the parties with regard to the Mask,
specifically that (1) the right of the United States to seek seizure and/or
forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”)
is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. §
1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of
Antiquities] do not establish the Mask is Egypt's property, nor can the
Defendants establish reasonable cause to believe the Mask was 'stolen,
smuggled, or clandestinely imported or introduced' into the United States
pursuant to 19 U.S.C. § 1595a.

During oral arguments about the forfeiture case, the Eighth Circuit suggested
that the government could still argue the forfeiture claim as a defense in the declaratory
judgment action. But with SLAM’s voluntarily withdrawal of the declaratory judgment
suit last week, federal authorities are now left with no forum to argue their claim that the mask is stolen property that cannot be owned by SLAM.

Federal attorneys told the court of appeals earlier this year, "It was the museum that precipitated a judicial intervention
by filing the declaratory judgment, explaining ""Our
preference was to reach a mediated solution to this dispute ...." But SLAM has now beaten the forfeiture case and,
predictably, the institution has no interest arguing title.

What’s next? Perhaps nothing. Statutes of limitations
may close the door on several legal alternatives. It is difficult to know what federal,
state, legal, mediated, or political options are being discussed at this time,
if any. But if such discussions are taking place, one would expect
that SLAM’s governing structure
is being probed as a possible requisite for action by private parties or
public authorities (e.g., the Missouri attorney general). The museum is funded
by property tax dollars, governed by a politically appointed board, and receives
financial assistance from a supporting nonprofit organization. For now, however, the Ka Nefer Nefer case will stay in the afterlife.

Judge
Catherine Blake, writing a June 3 memorandum opinion in the matter of U.S.
v. Three Knife-Shaped Coins Et al.,rejected
the ACCG’s plea to relitigate a challenge to the validity of import regulations
authorized by the Cultural Property Implementation Act (CPIA). Her decision
also halts a repeat of arguments concerning the decision made by U.S. authorities
to enact import protections covering ancient Chinese and Cypriot coin artifacts
in jeopardy of pillage, saying this matter had already been addressed.

In
fact, the Fourth Circuit Court of Appeals decided in 2012 that the federal government
properly identified Chinese and Cypriot coins subject to U.S. import
restrictions under the CPIA and that the detention of the coins by customs
officials was proper. The appeals court pointed out that, under these circumstances, the
burden shifted to the ACCG to prove that the import of the coins was lawful.

Judge
Blake’s two page opinion declared that “it is abundantly clear that the
claimant, Ancient Coin Collectors Guild (“the Guild”) seeks to expand the scope
of this [federal district court] forfeiture action well beyond the limits set
by the Fourth Circuit …. The Fourth Circuit’s opinion forecloses any further
challenge to the validity of the regulations.” The judge added:

As
the government notes in its motion
to strike the initial answer, much of the [ACCG’s] answer and most if not
all of the affirmative defenses seek to relitigate issues concerning the
validity of the regulations and the government’s decision to impose import restrictions
on certain Cypriot and Chinese coins. For example, in its Surreply opposing the
motion to strike, the Guild suggests that
the government will be required to establish that the coins were “first
discovered within” and “subject
to the export control” of either Cyprus or China. (Surreply, ECF No. 18, at
1-2.) The Guild
is not correct. This argument also is foreclosed by the Fourth Circuit’s
opinion. Ancient Coin
Collectors, 698 F.3d at 181-82.

The
ACCG has responded by filing a motion to reconsider. In court papers filed this
week, the Guild has contended that the “first discovered” argument is central
to due process and must be litigated:

Due
process afforded under the U.S. Constitution, the governing statute, and general
principles of forfeiture law, all place the burden on the government to establish
a factual basis for its contention that the coins at issue were “first discovered within” and “subject to the export
control” of either Cyprus or China.

The ACCG’s “first discovered” claim maintains that
the U.S. State Department and CBP acted outside their authority by
placing CPIA import restrictions on coins of certain types without initially showing that they were "first discovered" within their countries of
origin. The Fourth Circuit has alreadystruck downthis claim, saying “We are not
persuaded,” explaining that "State and CBP are under no obligation to list
restricted items with more specificity than the [CPIA] statute commands, and
they are certainly not required to impose restrictions on a coin-by-coin basis.
Such a requirement would make the statutory scheme utterly unworkable in
practice.”

The battle ofU.S.
v. ThreeKnife-ShapedCoins traces its roots to 2009 when the Guild transported ancient
coins from London to Baltimore to start a test case. The ACCG declared to U.S. Customs and Border Protection
(CBP) that the coins were from China and Cyprus but failed to offer information about any known provenance. CBP took custody of the coins, and the Guild started litigation to challenge the validity of the CPIA’s cultural heritage
import protections. After the ACCG lost, the U.S. Attorney in Maryland filed aforfeiture
complaintin May 2013 to
retain the coins. The ACCG filed a response soon
thereafter.

The Maryland federal court is expected to rule on the ACCG’s motion to reconsider once a reply is offered by the
government. The court will also set a discovery schedule as the case proceeds to trial.

Meanwhile, the ancient coin lobby has raised the possibility of a "coin looter's exemption" being proposed by Congress while the present district court action continues. Such an exemption to the CPIA could potentially affect the current litigation. The Lawyer's Committee for Cultural Heritage Preservation and the Archaeological Institute of America have issued calls to action in response.

A copy of the court's decision and the ACCG's motion to reconsider may be found on the Guild's web page here.

Sunday, June 15, 2014

The president last week signed into law the Monuments
Men Recognition Act of 2014 to award the Congressional Gold Medal to the
men and women who fought to preserve cultural heritage during World War II.

Rep. Kay Granger (R-TX-12) and Senator Roy Blunt
(R-MO) spearheaded the legislative effort along with other members of the House
and Senate.

Congresswoman Kay Granger’s remarks on the House
floor last month (video below) highlight the importance of the new law.

Thursday, June 12, 2014

[UPDATED June 19, 2014 and July 1, 2014]The
Ka Nefer Nefer Mummy mask will stay at the St. Louis Art Museum (SLAM), at least
as far as the federal forfeiture case is concerned. That is the outcome of today’s
Eighth Circuit Court of Appeals decision in U.S. v. Mask of Ka Nefer Nefer.

Eighth Circuit Judge James Loken, who observed during oral argument that
the government made mistakes, remarking “You now
have to beg for a do-over,” authored today's lead opinion.

The
issue raised on this appeal is whether the district court abused its discretion
in denying the government’s post-dismissal motion for leave to file an amended
civil forfeiture complaint. Underlying that issue is an attempt to expand the government’s
forfeiture powers at the likely expense of museums and other good faith purchasers
in the international marketplace for ancient artifacts. We affirm the district
court’s procedural ruling and therefore leave this important substantive issue for
another day.

Judge Loken's ruling peppered the government with criticisms for committing procedural missteps.

Judge Diana Murphy notably wrote an important concurring opinion to “express my concern about what
the record in this case reveals about the illicit trade in antiquities.” She
acknowledged that the lower court did not abuse its discretion when dismissing
the government’s forfeiture case, commenting that “[t]he government was
dilatory,” but the jurist penned several cautionary paragraphs to explain that
institutions and individuals in the antiquities marketplace must act lawfully. Judge Murphy wrote, in part:

The substantive issues underlying this litigation are of
great significance, and not only to museums which responsibly seek to build
their collections. The theft of cultural patrimony and its trade on the black
market for stolen antiquities present concerns of international import.

…

While this case turns on a procedural issue, courts are bound
to recognize that the illicit sale of antiquities poses a continuing threat to
the preservation of the world's international cultural heritage. Museums and
other participants in the international market for art and antiquities need to
exercise caution and care in their dealings in order to protect this heritage
and to understand that the United States might ultimately be able to recover
such purchases.

Today's appellate decision stops government lawyers from litigating the allegations made in their late-filed amended complaint that the mummy mask is stolen property and remains in the U.S. "contrary to law." The government might be able to raise this claim in SLAM's declaratory judgment action, but that case could prove to be an uphill battle for federal attorneys.The case of U.S.
v. Ka Nefer Nefer started when the
United States Attorney in St. Louis moved to take the mummy mask from SLAM
in 2011 in order to return it to Egypt. The U.S. Attorney filed the action in response to SLAM first filing a declaratory judgment suit seeking judicially-recognized ownership of the mask. While the declaratory judgment action remained stayed, district court judge Henry Autrey brought the
government’s forfeiture case to an end in
April 2012 after concluding that the government's complaint
failed to specifically articulate how the mask was allegedly stolen and
smuggled, or how it was brought into the U.S. contrary to law. Federal prosecutors filed a motion to
reconsider, and in May 2012 the government revealed new
information that it said would support an amended
complaint. Judge Autrey denied the motion to reconsider, but prosecutors submitted their proposed amended
complaint anyway. The district court repeated that
it had dismissed the case. The government thereafter appealed to the Eighth Circuit, and the parties offered
oral arguments in January.

Today’s appellate decision can be found here, and a complete list of CHL's posts chronicling the litigation may be found by clicking here.Questions that remain as a result of the halted litigation have been raised by David Gill here.

Wednesday, June 11, 2014

Dangerous. That is the term used by a reference document cited by the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) to describe a potential legislative proposal that would allow looted archaeological coins to enter the United States legally.LCCHP has issued a call to action to halt the coin looters’ exemption before it might be introduced. The nonprofit posted a statement on its web site that explains what is happening:

Members of Congressman Charles B. Rangel’s (Dem-NY)
and Congressman Steve Israel’s (Dem-NY) staff are considering the introduction
of legislation that would specifically exempt coins from trade restrictions
under the Cultural Property Implementation Act (CPIA). This initiative is being heavily lobbied for
by coin collectors. LCCHP opposes the passage of this legislation, which would
weaken protection of cultural heritage and allow collectors to more easily
purchase coins discovered during illicit excavations.… We encourage our members
within the relevant districts to contact the Congressmen regarding this
legislation.

LCCHP President Elizabeth
Varner and Vice President Diane Penneys Edelman wrote the lawmakers to say, “Such an exemption is neither needed by the
coin trade nor warranted by CPIA’s provisions, and would cause irreparable harm
to international relations."The Archaeological Institute of America (AIA), meanwhile, has launched a petition.to voice public concern over the looted coins exemption, saying "Rep. Rangel and Israel need to
hear from their constituents like you who oppose this exemption."

Readers of CHL are keenly aware
that the CPIA is the federal statute that authorizes U.S. Customs and Border
Protection to keep out specifically designated archaeological coins—among other archaeological
materials in jeopardy of pillage—from the stream of American commerce. The law's definitions cover ancient coins.

As I have stated in my support of the inclusion of coins in
the MOU [Memorandum of Understanding] with Cyprus, my arguments and position
are not against collecting or trading coins:
museums and scholars have always benefited from the collaboration and knowledge
of collectors and dealers, most of whom are ethical and respect the law. The
restrictions and MOUs pertain to illegal activities, looting and theft.
(Emphasis in the original).

Adopting a coin looters’ exemption would turn the CPIA on its
head by providing a safe haven for contraband archaeological coin artifacts imported from
abroad— culturally significant artifacts that Arnold-Biucchi has called “invaluable documents of
material culture and a primary source of information for the history, religion and
art of those cities or rulers.”

The appeals court added that the CPIA does not create undue burdens on
importers, writing that “[t]he importer need not
document every movement of its articles since ancient times. It need
demonstrate only that the articles left the country that has requested import
restrictions before those restrictions went into effect or more than ten years
before the date of import.”

Better than a change to the CPIA would
be a record keeping law that brings integrity to the purchase and sale of ancient
coins. Such a bill would require dealer record keeping
of purchase and sales transactions and the chain of custody of archaeological
coin artifacts imported and sold. A
record keeping law, framed along the lines of one previously
proposed by CHL, would help to spotlight
and separate the black trade that has latched onto the legitimate marketplace and thereby help to safeguard an increasingly threatened archaeological
record.

Staffers in Rep. Israel’s office might find this
measure more appealing, particularly since the congressman has spearheaded other consumer
protection bills including the Counterfeit Drug
Enforcement Act, which proposed increased penalties for the sale of
adulterated prescriptions and strengthened record keeping requirements to
document the chain of custody of medications.

Documenting the chain of custody of heritage
objects from dirt to dealer requires significant improvement, especially when it
comes to legally importing archaeological coin artifacts. But a looters’
exemption to the CPIA would not offer a solution. Instead, this kind of exemption would expand transnational heritage trafficking into the American marketplace. That is why
LCCHP and AIA have issued calls to action, urging those who care about preserving evidence of the past to contact
Representatives Rangel and Israel before an exemption may be proposed.

Wednesday, June 4, 2014

A
federal judge sitting in the Eastern District of New York has sentenced convicted
ivory smuggler Victor Gordon to 30 months in prison, two years supervised release, a fine of $7500 and forfeiture of $150,000 plus one ton of elephant ivory.

Gordon pleaded guilty to a smuggling charge in 2012 after U.S. Fish and Wildlife Service seized hundreds of illegal ivory carvings from Victor Gordon Enterprises in downtown Philadelphia in 2009. The sentencing took place almost two years later after having been rescheduled several times.

Today’s
sentencing hearing was preceded by an evidentiary hearing conducted last week before Judge Kiyo A. Matsumoto where defense lawyer
Daniel-Paul Alva presented character witnesses testifying in support of Gordon.

Ivory seized in U.S. Victor Gordon. USFW

Assistant U.S. Attorney (AUSA) Darren LaVerne, meanwhile, filed a memorandum with the court urging the imposition of a sentence of 30-37 months’
incarceration.

“This case, in particular, presents one of the most egregious
examples of an individual flouting the laws against ivory trafficking that has
been prosecuted in the United States,” the prosecutor wrote.

Seeking a more lenient sentence outside the 30-37 month range recommended by the federal sentencing guidelines, Alva explained that “Mr.Gordonadmittedtohisinvolvementinthe obtaining,possession,andtradeofalargeamountofunlawfulivory….” He offered three
other points of consideration in his court memorandum:

AUSA LaVerne disagreed with these arguments, expressing in the prosecution's memorandum,

An appropriate sentence must reflect, in particular, (i) the
seriousness of this offense, which is increasingly the focus of national and
global law enforcement and policy efforts; (ii) the importance of general
deterrence, which courts have recognized has special relevance in this context;
(iii) the unusually large amount of illegal ivory involved in this case; (iv)
the duration of the crime, which stretched for nearly a decade; (v) the manner
in which the crime was committed, including the fact that the defendant, on
multiple occasions, paid a coconspirator to obtain ivory directly from Africa
and smuggle it into the United States; and (vi) the defendant’s significantly
greater culpability relative to the six
defendants previously sentenced by the Court in a related case, United States v.
Sylla, et al.

The
court sided with LaVerne.U.S. Attorney Loretta Lynch remarked that “preventing
the flow of illegal ivory through and within our borders” is an important American
commitment. “This prosecution–which resulted in the seizure and forfeiture of
one of the largest known caches of illegal elephant ivory in the United States
and the imprisonment of the person who acquired and attempted to profit from it
– is emblematic of that commitment.”By Rick St. Hilaire
Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited.
CONTACT INFORMATION: www.culturalheritagelawyer.com

Calling Eric Prokopi “a unique and important cooperating witness
in the annals of national resource crime,” federal prosecutors urged leniency for
the accused
dinosaur smuggler who pleaded
guilty in 2012 for his involvement in illegally importing dinosaur bones
into the United States, which included a Tyrannosaurus Bataar skeleton looted from Mongolia
and auctioned for more than $1 million.

New York federal judge Alvin K. Hellerstein heeded the request and yesterday sentenced Prokopi to three months' custody; one year and three
months supervised release, of which the first three months shall be community
confinement; $300 special assessment; and community service during the year of
supervised released.

Prokopi's sentence followed his earlier conviction to an information charging conspiracy
to smuggle goods into the United States, conspiracy to commit bribery using
federal funds, entry of goods by means of false statements, and transportation
of stolen goods.

In a sentencing memorandum filed on Monday, prosecutors representing the
U.S. Attorney’s Office for the Southern District of New York wrote that “Prokopi
provided information that was and remains crucial in law enforcement’s
revitalized efforts to police what had essentially become a black market in
stolen national treasures that operated in plain sight.”

Prosecutors welcomed Prokopi’s cooperation after the defendant's lawyers in the
forfeiture case—widely known for their ancient coin dealer and collector
advocacy—vigorously contended that theBataar skeleton was
not stolen.

Demonstrating that the prosecution of cultural property crimes potentially offers law enforcement opportunities to learn about criminal techniques and to develop or
confirm investigative leads—opportunites that may not be presented by the mere seizure and repatriation of contraband cultural heritage—government attorneys highlighted in their sentencing
memorandum the advantages gained by Prokopi’s cooperation with federal investigators:

Prokopi met with agents and representatives of our Office and the
Department of Homeland Security, Homeland Security Investigations numerous times,
spent many hours giving information about the fossil trade not only to this
office, but to three other offices as they developed their understanding of the
fossil trade. Prokopi developed their knowledge of the players in the trade of
not only dinosaur fossils, but other natural treasures. Since Prokopi’s
cooperation, other fossils have been seized and individuals arrested. Although these
owe to leads developed separately and in some cases before Prokopi’s
cooperation, it is safe to say that there is not an active fossil investigation
that has not been informed, to some degree, by information given by Prokopi in
this case.

Prokopi’s
lawyer argued for an entirely non-custodial sentence in light of the defendant’s
cooperation, his background, the lack of jail sentences handed down to
similarly situated defendants, and his acceptance of responsibility. A May 23
sentencing memorandum filed by defense counsel claimed that “Prokopiwasledtobelieve thataslongastheproperMongoliangovernmentpermitswereobtained,itwould
be lawfulforaprivateindividualtopurchaseMongolianfossilsforexport.” The defense attorney argued more fully that:

2015 ABA Journal Blawg 100 Honoree

2014 ABA Journal Blawg 100 Honoree

2014 Daniel Webster International Lawyer of the Year award given to Rick St. Hilaire

"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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Rick St. Hilaire is among those featured in Josh Knelman's book, Hot Art

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